In the shadow of a Presidential veto, it will be impossible to repeal health care reform completely—despite the overwhelming number of additional seats Republicans won in the 2010 election. Congress could, however, strip implementation funding from the Patient Protection and Affordable Care Act (PPACA) and its companion bill, the Health Care and Education Reconciliation Act (HCERA), known jointly among detractors as “Obamacare,” and more properly as the Affordable Care Act (ACA). Defunding the health care bill has been advocated by Republican leaders such as Rep. John Boehner (R-OH) and Sen. John McCain (R-AZ), who view the ACA as simultaneously unpopular and counterproductive. The economics of the bill do appear unsustainable, and the ACA may unravel American health insurance entirely. This Essay, however, argues that because the bill functions as a single, coherent whole, even ardent opponents of the bill should avoid slashing funding. Stripping out certain provisions while leaving others intact would result in a vastly more destructive and incomprehensible package—and incalculable damage to the the party authoring the alterations.

Even if health care reform is viewed as a ticking time bomb, defunding would produce shrapnel that would be vastly more destructive than the bomb would have been on its own.

Bottlenecks at any layer of the Internet—physical, social, application, or content—create opportunities for the exercise of undue power over the flow of information and ideas online. Corporate forces menace both user privacy and free expression on the Internet. Market concentration lets powerful business leaders develop unprecedented digital dossiers on users. Such concentration also allows leading companies to pervasively shape culture and politics, elevating some voices and silencing others.

The privacy and First Amendment cases for net neutrality are compelling. But net neutrality’s opponents are inverting the debate by asserting their own rights to “free speech” and asserting a form of corporate privacy-trade secrecy. While Christopher Yoo’s theory of “architectural censorship” has not yet vindicated Internet Service Providers’ (ISPs) claims to expansive First Amendment rights, ISPs’ business alliances with search engines and other internet companies that monitor content may make their decisions sufficiently “speech-like” to attract protection from the current Supreme Court, thereby insulating ISP decisions from regulation and scrutiny. Classifying network management decisions as “trade secrets” could also hamper public scrutiny of and regulatory attention to ISPs’ actions. Corporate trade secrecy privileges would make it difficult for consumers to determine if their privacy rights have been violated. Corporate First Amendment protections would likely foil lawsuits (and even some regulation) designed to promote the public interest by ensuring fair, open, and neutral ordering of data flows online.

Legal argument may stop this inversion. First Amendment and trade secrecy doctrines, as applied to ISPs and seach engines, are vague, and there may be openings to establish new legal doctrines on this front that would promote the free flow of information online. But given Google’s success in advancing its legal interests, the recent collaboration between Google and Verizon in developing a “legislative framework” for network neutrality,[5] and the present composition of the Roberts Court, consumer advocates who care about individuals’ rights to privacy and free expression should start moving beyond the legal system to develop more transparent and open alternatives to increasingly unregulable networks of dominant online intermediaries.